Sex Harassment Faces Title IX Legal Test

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Nancy Hogshead-Makar

(WOMENSENEWS)–Nine years have passed since former player Melissa Jennings accused the most successful women’s college soccer coach in the country, the University of North Carolina’s Anson Dorrance, of sexual harassment in a case that shocked the sport.

Over time, Jennings moved from college student to teacher in Illinois while Dorrance added to his collection of national championships at North Carolina, now at 19 and counting. But the suit was never tried in court.

Now it might be headed to the U.S. Supreme Court in a case that ultimately could have significant implications for Title IX, the groundbreaking 1972 law that bans discrimination on the basis of sex in educational institutions that receive federal funds.

Title IX is most often associated with equal opportunity among men and women in college athletics. The law also addresses, however, sexual harassment in education, an issue on college campuses throughout the country.

A study by the Washington-based American Association of University Women found that 62 percent of female college students, and 61 percent of men, reported having been sexually harassed at their university.

Jennings was 17 years old when she joined the powerhouse North Carolina team in 1996 that had produced such World Cup stars as Mia Hamm and Kristine Lilly. But in the two years Jennings was on the team before being cut following the 1997 season, she claimed that Dorrance repeatedly pried into the personal lives of his players with degrading questions and comments, and made foul remarks about the appearance of some athletes. Some comments were directed at Jennings, but many targeted other players.

Jennings joined with Debbie Keller, a national player of the year for the Tar Heels, and filed suit in U.S. District Court in North Carolina in August 1998. Keller, who also accused Dorrance of inappropriate physical contact, later settled out of court for $70,000 along with a requirement that Dorrance undergo sensitivity training.

Jennings Persisted

Jennings continued on with the suit that claimed Dorrance violated Title IX by creating a hostile environment at North Carolina that denied her the benefits of college sports and that the university acted with deliberate indifference in failing to address it when informed of the charge.

The case was dismissed by a district court judge in Greensboro, N.C., just before it was scheduled to go to trial in 2004. Jennings appealed, and a panel of the Fourth Circuit Court of Appeals in Richmond, Va., upheld the decision, 2-1, in 2006. Jennings appealed once more and in April, the Fourth Circuit ruled 8-2 in her favor, finally sending the case back to District Court for trial.

But in July, the North Carolina attorney general’s office representing the school and Dorrance appealed the ruling to the U.S. Supreme Court. The high court has scheduled Jennings v. North Carolina for conference on Sept. 24 to decide if it will be heard this session.

If the Supreme Court denies the appeal, the case is expected to finally be heard in District Court perhaps early next year.

Nancy Hogshead-Makar, a former Olympic gold medal swimmer and past president of the New York-based Women’s Sports Foundation, says the case may help define what constitutes sexual harassment in a sports team atmosphere and within a relationship between a coach and an athlete.

"The fact that sexual harassment is prohibited under Title IX is not new news," said Hogshead-Makar, a professor at Florida Coastal School of Law and an expert on Title IX issues.

Courts Don’t Want to be ‘Polite Police’

"The standard is, in order to be able to prevail, a plaintiff has to show that the conduct is severe and pervasive," she said. "Well, what does that mean? And that’s where the rub is. On the one hand, courts don’t want to become the polite police, but on the other hand, we don’t want to enable somebody to use somebody’s gender to degrade them. Where is that line?"

The Washington-based National Women’s Law Center, which has expertise in Title IX cases, wrote the brief in opposition on behalf of Jennings and will join Geneva, Ill., attorney Daniel Konicek as co-counsel if the case goes to the Supreme Court.

"The University of North Carolina is claiming that the conduct that occurred was not actually sexual harassment, that it was instead sort of joking among coach and student," said Fatima Goss Graves, senior counsel for the National Women’s Law Center. "But in terms of the court’s historic precedents . . . this isn’t a groundbreaking case."

That’s why Graves hopes the high court will deny the appeal and allow the case to proceed in District Court. But the North Carolina attorney general’s appeal argues otherwise.

A spokesperson said officials would not comment on pending cases. Court documents indicate that, among several issues put before the court, North Carolina’s appeal claimed that the Jennings’s case would extend educational institutions’ liability under Title IX "far beyond their clear obligation to protect students from discrimination on the basis of sex. The decision exposes universities to damages simply because they did not protect a student from profanity and crude sexual jokes."

Question of Target

Among the questions raised by this case is whether an instance of harassment can be held to have occurred if much of it was directed at others and not specifically at Jennings.

"Their position, and this is where I think the case is going to have significant ramifications in Title IX . . . was to say that Anson never targeted her," Konicek said.

"Because he didn’t direct those comments to her she wasn’t victimized under Title IX. And our position always was, you don’t have to have those conversations directly with the person who’s pursuing Title IX."

Konicek says the Fourth Circuit ruled that Jennings that did not need to be the target. "And I think that’s the main issue they’re arguing to the Supreme Court that this has created a new area of law. Logically, when you think about it, it really hasn’t. That’s why I think the Supreme Court is going to deny it."

Melissa Jennings left North Carolina and completed her degree requirements at another school after her lawsuit became public and she faced threats on campus. Now married, she has stayed out of the public eye and has consistently declined comment on the case.

But her father, Craig Jennings, was willing to speak with Women’s eNews.

"If you were sitting with her in a room, I could bring it up and you could see that it upset her," he said, when asked if his daughter was still affected by the experience so many years later. "My personal feeling is nobody, whether they’re in an office or on a playing field, needs to put up with that stuff."

Viv Bernstein is a freelance writer based in Charlotte, N.C., and a frequent contributor to the New York Times. She is a former staff sports reporter for the Detroit Free Press, the Hartford Courant and other newspapers and has written for numerous publications.

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For more information:

"Sports Advocates Draw Line on Title IX Battlefield":
http://www.womensenews.org/article.cfm/dyn/aid/3213/

National Women’s Law Center:
http://www.nwlc.org/

American Association of University Women:
http://www.aauw.org/

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